' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Muhammad Yasin, respondent No,1 was included in the list of 84 officials of the rank of A.S.-I. To Inspector from the Province of Punjab for performing duties as United Nations Monitors in Haiti. But ultimately his name was dropped and "persons much junior to him and who had not even applied for the inclusion of their names for Mission and had not appeared before the (Selection) Board, had been selected".. Feeling aggrieved, respondent No, 1 (hereinafter referred to as respondent) filed W.P. No, 2826/95 in the Lahore High Court. In parawise comments filed on behalf of the petitioner, according to respondent, admitted that selection of the respondent and others was made on merits and forwarded to the Ministry of Interior, Islamabad.
During the pendency of the writ petition, it was assured by the petitioner, that the respondent will be included in future draws for deployment under the auspicious of the United Nations Missions abroad including Haiti," the writ petition of respondent was "disposed of as having fructified." In the meantime requisition for police officials was received from United Nations Missions in Bosenia Herzegovina. The grievance of the respondent expressed in Writ Petition No,2965 of 1996 was that the petitioner and respondent No, 2 were adamant to oblige him, besides illegally imposing an additional condition that the officials who had served earlier on U.N. Mission abroad should not be considered and, therefore, prayed that "respondents may be directed to include the name of the petitioner for the mission being sent to Bosenia Herzegovina as they have committed in their written report in the High Court on the basis of which Writ Petition No, 2826/95 was disposed of as having been fructified".
2. In parawise comments, the petitioner maintained that in Writ Petition No, 2716 of 1995 titled Muhammad Shoaib v. I.-G. Police etc., "the assurance of the Federal Government related only to United Nations Missions in Haiti and it was categorically stated that the candidates who had already served in United Nations Mission abroad shall not be considered in order to give chance to the new officers also".
3. It would thus be seen that although respondent had not stated categorically but inference is irresistible that he had already been deputed to U.N. Missions abroad.
4. The learned Judge in Chanlbers of the High Court who was seized of the writ petition repelled the contentions, raised on behalf of the respondent that after holding out the assurance in the writ petition that the respondent shall be included in future secondment to the U.N. Missions being binding could not be restrained from serving in the present mission, as misconceived holding that the assurance held out the respondent in the earlier writ petition was for the then Mission in Haiti and not for all the future U.N. Missions. The next contention that condition (a) debarring those who had already remained on U.N. Missions abroad was violative of fundamental right guaranteed under Article 27 of the Constitution of Islamic Republic of Pakistan, 1973, was not entertained holding that the condition was not discriminatory but was imposed in order to provide equal opportunity to all concerned. The policy of proportional representation allocated rankwise in the recruitment process was, however, entertained saying that condition (a) ibid could not be construed as rendering the available vacancies to lapse as unutilised "in the presence of those police officials who have been selected by the U.N. Selection Team". In view of the statement made by a Section Officer in the Interior Division who had attended the High Court and the Deputy Attorney-General, the learned Single Judge directed that "if and when the group of Pakistani Police Officials go to Bosinia Herzegovinia as part of UNIPTF, and if at that time any seat, out of the quota allocated to Punjab Police, in the category of Sub-Inspectors and below, is still available as unfilled, which would even otherwise be lost as unavailed of, then in that case the petitioner who has already been selected by the U.N. Selection Team, shall be entitled under the law to be included in the Mission which is going to Bosinia Herzegovina as part of UNIPTF," and on 21-5-1996 disposed of the writ petition accordingly. Still dissatisfied the respondent filed an Intra-Court Appeal (No,. 196 of 1996) in the Lahore High Court against the order of the learned Single Judge dated 21-5-1996.
4-A. The contention advanced on behalf of the respondent that "due to the act of the Federal Government of not sending persons selected by the Foreign Mission the country is suffering financial losses and till such the selection is made of other persons the petitioner-appellant may be recalled' found favour with the learned I.C.A. Bench which passed the order in the following terms:-- "We hereby direct the Federal Government to send the appellant abroad forthwith. He will remain there till such time the total number of vacancies is filled with those persons who were found to be fit and selected by the Foreign Mission on which the appellant/petitioner shall be recalled. This disposes of C.M. No,1/96."
5. It is the afore-noted order dated 3-7-1996 of the I.C.A. Bench against which the Government of Pakistan through Secretary; Ministry of Interior, have sought leave to appeal.
6. On receipt of the orders of the I.C.A. Bench of the Lahore High Court reproduced above, the Provincial Governments were reminded to finalise the selection. The nominations were received in July, 1996, therefore, the Permanent Mission of Pakistan in the United Nations was requested to U.N.O. Authorities to intimate as to when they would send a Selection Team for deployment of Police Officials. The PAREP New York by their letter dated 15-8-1996 intimated that there was no requirement for additional police personnel for deployment in UNIPTF.
7. Mr. Mumtaz Ali Mirza, the learned Deputy A.-G., in support of this petition, raised the following contentions:- "(a) That duty/deployment abroad is not a vested right of a civil servant hence the order has been passed illegally by the learned High Court.
(b) That the policy of sending police officials under U.N. Mission once is based on equity and justice.
This aspect of the case has been ignored by the learned High Court.
(c) That most of the employees in police are poor and deserve to be given a chance to go abroad.
Respondent No,1 has no vested right to claim as such.
(d) That the petitioner has a right to workout terms and conditions of deployment in consultation with the U.N. Authorities. The request from U.N. Authorities does not confer any right to a civil servant to be deployed under U.N. Mission as Government of Pakistan has a right to decide who should be deputed/deployed abroad. Moreover, the petitioner has violated the discipline of civil service by approaching directly the U.N. Authorities for a requisition. If such acts on a part of Civil Servant are allowed, then there will be no discipline in civil service and everybody will be approaching the foreign agencies directly for job etc., thus destroying the whole fabric of civil service.
(e) That the order is without jurisdiction and lawful authority hence the same is liable to be set aside."
8. Mr. Farobq Baidar, learned A.S.C. Appearing before us in support of the petition, has reiterated the same arguments which he had made before the learned I.C.A. Bench of the High Court and contended that the omission on the part of the petitioner-Government to permit the respondent to join U.N. Mission in Bosenia Herzegovina was fraught with financial loss of valuable foreign exchange to the petitioner-Government.
9. The foremost question falling for determination is whether the respondent had a vested right to join the U.N. Mission in Bosenia Herzegovina. Respondent is a civil servant whose service rights are regulated under the Punjab Civil Servants Act, 1973 and the Rules framed thereunder from time to time. The learned counsel appearing on behalf of the respondent has not been able to point out violation of any provisions of the Punjab Civil Servants Act, 1973 or any Rule framed thereunder, while he was disallowed to join the U.N. Mission in Bosenia Herzegovina. The argument that while declining respondent to join U.N. Mission, petitioner-Government will incur the loss in earning foreign exchange does not per se vest in a civil servant a right to maintain writ petition and hardly furnishes a valid premises for granting the relief as had been granted by the learned I.C.A. Bench of the High Court in its writ jurisdiction. We are conscious that the superior Courts have repeatedly exercised the writ jurisdiction in appropriate cases, involving fiscal right and on the allegation of misapplication of law or abuse of power in order to examine whether or not public functionary concerned acted in accordance with the powers conferred on him by the statute. (See Julian Hoshang Dinshaw Trust v. I.T.O. (1992 SCM R 250). In the instant case, the apprehended loss in foreign exchange earning was hardly violative of any statutory provision. The impugned order when minutely scrutinized would reveal that, besides being a policy decision, was passed to give opportunity to other police officials to avail of the chance abroad as the respondent had already served in U.N. Mission in Combodia. The act thus squarely fell within the ambit of a policy decision proceeding on equitable consideration. The impugned order, therefore, appears to us in accord with the equities of the case and no ground has been made out which would justify the issuance of the writ in the terms that it has been done. The learned I.C.A. Bench has not been mindful of the true scope of the Constitutional jurisdiction. Writ jurisdiction is discretionary in nature and even if the learned Single Judge and the learned I.C.A. Bench of the High Court found that the respondent had a good case, they could still refrain from giving him the relief if greater harm was likely to be caused thereby than the one sought to be remedied.
10. It is settled principle of the Constitutional jurisdiction that it shall be made available in aid of law to issue writ. The High Court acts in aid of law and not to hamper the working of the agencies established by law. The superior Courts have repeatedly pointed out that Constitutional jurisdiction is exercised with restraint and in grave cases where the subordinate Tribunals act wholly without jurisdiction or in excess of it or in violation of the principles of natural justice or refuse to exercise the jurisdiction vested in them or there is an error apparent on the face of the record and such act, omission or excess has resulted in manifest injustice. However, extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made. In Mst. Mahmooda Begum v. Chief Settlement Commissioner, West Pakistan and another (PLD 1962 Lah. 911), it was held that "writ will not issue if only grievance is that order was not "proper or just", and Shabir Ahmad, J. Has pointed out at page 915 of the report:- "There is a fundamental difference between the power to hear appeals or revisions and the powers to issue writs."
11. The upshot of the above discussions is that this petition is converted into appeal and allowed. In consequence, the impugned orders passed by the learned Judge in Chambers of the High Court and that passed by the I.C.A. Bench are set aside and the writ petition is dismissed as not maintainable. We are, however, inclined to leave the parties to bear their own costs.